Ched Evans – Did the Court get it Wrong?

Ched Evans – Did the Court get it Wrong?Similar Sexual Behaviour and Consent

The Ched Evans rape case has attracted widespread publicity recently. The star footballer, convicted of rape in 2012 who served 2 ½ years in prison was cleared on a retrial after the new jury were told that the young female he had sex with had a habit of drunkenly engaging in sexual relationships at that time, and that her behaviour with those other men sounded a lot like what Mr Evans had always told the police was the truth.

This controversial new evidence has been met with dismay and outrage in many quarters. A group of MP’s has called for an urgent change in the law. There has been much nonsense spouted, much misinformed opinion aired. Those clamouring MP’s might do well to read and understand the law before trying to change it. No new precedents have been set, the law has not been set back 30 years, the law has been followed. Due process has taken it course.

But the Ched Evans decision in the Court of Appeal was, with the greatest respect to all those involved, wrong.

Two men had come forward at different points in the investigation to claim they had also has sex with the lady in question, known as X, at about the same time as Ched Evans. The other sexual behaviour reported by these men, Mr Hughes and Mr Owen, was found by the Court of Appeal to be sufficiently similar to her alleged behaviour in the Ched Evans incident to be relevant and admissible.

On each occasion, if the evidence were true, she had been drinking, she is said to have instigated certain sexual activity, directed her sexual partner in positions, and used specific words of encouragement.

With Mr Owen and Mr Hughes the behaviour was nothing other than consensual. The behaviour described by Ched Evans was found to be so similar as to be beyond a coincidence.

The criticism in this analysis by the Court of Appeal is twofold. Firstly, whilst it is obviously right that if the jury rejected his factual account of what happened he would have been guilty, the exact facts of what happened in the bedroom were not a central issue in dispute. X remembered nothing. She did not claim to have been raped. The Prosecution could scrutinise but hardly gainsay the factual account given by the defence. Moreover, even if the essence of what the defendant said happened factually was true, he did not necessarily stand to be acquitted. Rather, the key issue related to X’s capacity to consent, given her intoxication and all the other circumstances. Secondly, when considering whether X’s other sexual behaviour was “so similar” to that with Ched Evans, the court seems to have fixated on the words and positions of the participants, whilst singularly failing to acknowledge the real circumstances. What amounts to ‘sexual behaviour’ should be seen in context. With Mr Hughes and Mr Owen, X had chosen a sexual partner before undressing. She was with only one partner. Neither Mr Owen nor Mr Hughes had burst in uninvited on a sexually prone Ms X with their mates filming at the window. To describe X’s ‘sexual behaviour’ as similar or even sensibly comparable in these instances was unreal. It is disappointing that the Court of Appeal did not even appear to address the relevance of that gaping dichotomy in circumstances, despite a careful recitation of the facts.

So the Court of Appeal decided it would be unfair to deny the defendant the chance to prove his specific account of the sexual behaviour of X with him by calling evidence she had behaved in a physically similar way with others, such that this could not be coincidence. That pure legal point is one an academic might appreciate and in which there is force. It was said to be at the heart of a fair trial.

But that decision had the unfair effect or the risk of an illogical conflation that consequently X must have been having consensual sex with the defendant. As the court said, how she behaved sexually went to the issue of capacity to consent and actual consent, and probably his reasonable belief or otherwise in her consent. Indeed, but previous physically similar sexual behaviour that was consensual in wholly different circumstances absolutely should not have been admitted given the risk that it would be treated as evidence that the incident with Ched Evans was consensual. It was simply unrealistic to expect a jury to steer clear of this credibility trap, trial judge directions or not. This, fundamentally, is why the Court was wrong to admit the evidence. The real issue for a fair trial was whether X had the capacity to consent to sex with Ched Evans, given that she was intoxicated, lying prone in bed in the midst of sexual activity with a male she had chosen to be with, but that Ched Evans was uninvited and unknown, with his mates filming at the window. Did she consent to that? Did she have the capacity to consent in those circumstances? Did he reasonably believe she was consenting, in those circumstances? Did she make a real choice, in those circumstances?

Whilst the retrial was a different court, with a different jury at a different time, one might observe that when a court heard a trial about those real issues, Ched Evans was convicted by a jury fair minded enough to acquit his co-defendant. On the other hand, when a jury heard that X liked to have brief sexual encounters with other men, he was acquitted in short order.

There has been a lot of poor quality and at times hysterical reporting on the Ched Evan’s case. The effect may be to deter victims from reporting crimes. Ill-informed politians calling for kneejerk change make this worse, not better. The Court of Appeal was right to highlight that evidence about the sexual behaviour of a complainant or victim will be rare, especially when it relates to sexual behaviour with third parties. This was a rare, but perhaps wrongly decided, case.

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9 thoughts on “Ched Evans – Did the Court get it Wrong?”

A very interesting and thoughtful article Matthew, thank you.
But I’m not convinced by your take on this matter.
You say “the exact facts of what happened in the bedroom were not a central issue in dispute”. I disagree with this; what happened in that bedroom in the early hours of that morning is absolutely key. Not the ‘exact’ facts, but whether X was in a fit state to consent or not.
In the next sentence you state: “X remembered nothing”. That’s not accurate; more precisely ‘X says she remembered nothing’.
Ched Evans says she was asked if he could join in, and claims she said yes. He states that X was fully engaged in the sex that then took place, taking the lead, requesting he perform oral-sex on her, changing positions, demanding he go harder, fully vocal and enjoying the sex that took place. He acknowledged she was drunk, but no more than he was, and in control.
If we are to believe that X was so incapacitated so as not able to consent i.e. effectively unconscious, then Ched’s story and its detail is a lie. If her actions were anything close to how Ched described it, then it indicates beyond reasonable doubt that she was consenting (whether she was lying about not being able to remember what happened, or genuinely unable to remember that she was consenting and fully engaged, is actually irrelevant).
You’re correct to point out the differences in the contexts of the sex between X and each of the two witnesses Owens and Hughes compared to the situation with Ched, but the appeal court didn’t say the scenarios were fully similar or even mainly comparable, nor that they had to be. The claim was that there was enough similarity between the behaviour of X with Owens and Hughes and what Ched described to give credibility to his description as being true i.e. not coincidence.
One piece of detail you omitted that is important: one of the two witnesses (I’m not sure if it was Owens or Hughes) said that on three occasions, X asked him the morning after they spent the night together, whether they had had sex, because she could not remember due to drinking.
In conclusion, this case came down to one issue only: did X consent to sex with Ched or not? The prosecution claimed she could not have consented due to intoxication. Ched Evans says she did consent, and explained in some detail how he was sure based on her behaviour and engagement in the sex. The similarity of the sex X had with Owens and Hughes provided significant credibility to Ched’s claim. We don’t know (indeed cannot know) to what extent the jury’s not-guilty decision was swayed by this sexual-history evidence, but I feel sure that the appeal-court was correct in letting the jury of a retrial hear this evidence, in conjunction with all the other evidence presented to them,
regards, Chris.

All good and fair points, and I appreciate that by taking issue with the court of appeal I face a formidable and thoroughly well considered judgement. Nonetheless, the legal nicety of differentiating between lending credibility to the defendant on one hand but not attacking the credibility of the complainant on the other is a fine one indeed. Hence in a case where the court was not dealing with, as a key issue, the need to resolve a clear conflict in factual evidence I fear the balance fell on the wrong side. That, coupled with a viable question mark over the similarity of the other sexual behaviour given the overall context, gives cause to pause and wonder whether they got this one right. Thanks for taking the time to read the post and comment. My fear is that the knee jerk reaction of too many has been misinformed and ill-judged. There is a rational argument that the court of appeal got this one wrong, but it was not the outrage some say and practitioners know just how very strict this law is in reality.

Hi Matthew – whatever our difference of opinion on this case, we are definitely agreed that the reactions of too many has been misinformed and ill-judged. Thanks for publishing my comment and replying to it – I’m glad we can show it’s possible to have a civil rational discussion about such matters whilst disagreeing. I have a bit more to say, if that’s ok.

I’ve just re-read the 16 page appeal-court judgement document released after the re-trial. As you say, they clearly made a thoroughly well considered decision in approving the use of the evidence from the two new witnesses. But I don’t see how it can be interpreted as getting the balance wrong between lending credibility to the defendant and attacking the credibility of the complainant – in fact I don’t see any attack nor negative aspect regarding the complainant. The detail of the sex she had with Owens and Hughes does not necessarily show her in a negative light; maybe some judgemental prudish types may question the morality of this kind of casual sex, but that’s of no relevance to the case.
Paragraph 48 of the appeal-court document states: The evidence in question may be admissible if, and only if, the defence can overcome the high hurdle of relevance and similarity.
Para 39 includes: Their accounts [Owens and Hughes] bear sufficiently close resemblance to the appellant’s account as to make the evidence ‘so similar’ that it cannot be reasonably explained as a coincidence.
We should also consider two further important points about the appeal-process and the request to have sexual-history evidence considered in the case:
Part 36 of the Criminal Procedure Rules sets out the process to be followed when seeking to introduce evidence of the complainant’s sexual history. The defence must make an application which should be carefully considered by the prosecution and a full and proper reply formulated, setting out the objections to the defendant’s application. Each and every point must be answered separately.
Therefore the prosecution had every opportunity to raise the concerns and issues that you’ve outlined in your analysis, and we can assume they probably did. What’s more, I presume the prosecution team could also have addressed these concerns and issues to the jury in their summing-up at the re-trial?
Also, it should be noted that the appeal-court could have quashed Ched Evans’ conviction and NOT ordered a re-trail – they chose not to do that, but to allow the new evidence to be admissible in a re-trial, for a new jury to reach a new verdict.

You say in your article “To describe X’s ‘sexual behaviour’ as similar or even sensibly comparable in these instances was unreal.” You also use the phrases “an illogical conflation”, “wholly different circumstances”, and “credibility trap”
But it seems even if the evidence of the two new witnesses had been acceptably similar, this wouldn’t have made much difference in your view. Because you say: “Even if the essence of what the defendant said happened factually was true, he did not necessarily stand to be acquitted”. And then: “Rather, the key issue related to X’s capacity to consent”.
But aren’t these two aspects intrinsically linked? If what Ched said happened is true, surely that’s proof enough of consent, or at the very least his reasonable belief she had consented, which could only lead to an acquittal?

X says she remembers nothing about what happened in the hotel bedroom; it seems to me only one of three possible explanations is at play here:
1: it’s true she was so intoxicated she could not have been in a fit state to consent
2: it is not true she was so intoxicated she could not have been in a fit state to consent, in fact she did fully engage and consent, but had lost all memory of events by the time she woke some hours later
3: it is not true she was so intoxicated she could not have been in a fit state to consent, she did fully engage and consent, and she did remember all of this in the morning.
If explanation 1 is true, Ched lied, he’s guilty of rape.
If explanation 3 is true, X lied, Ched is not guilty of rape.
So let’s assume explanation 2 is what happened, since this does not involve either of them lying, has both Ched and X being truthful.
But how could Ched and his defence team convince a jury that, despite a raft of evidence indicating X was not incapacitated, he was being truthful?
(The raft of evidence btw, includes: X was able to order food at the takeaway; she sent a coherent typo-free text to a friend; she engaged McDonald in conversation and chose to get in the cab with him; she complied with the taxi-driver to move from the back to the front of the taxi; the taxi-driver noticed she buttoned-up her dress; she was aware of her bag being missing; she willingly walked into the hotel reception; she realised she’d left the pizza box outside, went back to get it, crouched to pick it up without falling over; the receptionist heard her actively engaged in sex, he had no concerns to intervene; she had not drunk any more alcohol for at least 75 minutes prior to entering the hotel room, and she had eaten some food; she told the police she normally drinks more than she had that night, that she was ‘tipsy but in control’.)

For what it’s worth, I think the initial conviction of Ched Evans on the charge of rape was appalling. In fact I don’t think it should ever have gone to court.
I wonder how different things may have been if Ched wasn’t a high-earning professional footballer?
And I wonder what difference it would have made, if X’s handbag had been in the room when she woke?
I have a daughter of 22 and a son of 18.
I’ve spent far too much time for my own well-being imagining that my daughter was X in that room with Evans and McDonald, and that my son was Ched in the room with X. I can honestly say in both scenarios, knowing what we do about this case, I have no doubt that Ched was not guilty of rape.
I feel tremendous sympathy for X.
I equally feel for Ched – two-and-a-half years in prison!
The CPS has let these two young people down very badly indeed,
regards, Chris.

Interesting views, and I apologise for any lack of clarity on my part – such is the way when composing a blog piece for both a legal and non legal article.

The credibility issue, the ‘credibility trap’ is not to do with X per se, but refers to the first of the so called twin myths parliament has legislated against – namely that an unchaste women is more likely to consent. There’s no question of me or the court of appeal moralising over X’s decisions. However, experience, history and detailed research has demonstrated that this myth is likely to impact verdicts unfairly if evidence of unchasteness is heard. Hence parliament rightly banned it. But such evidence is not banned at the expense of a fair trial. Hence the balancing act. In this case where consent is an issue, s41 tells us that balancing act falls against admission unless the other sexual behaviour is ‘so similar’.

It seems plain to me that the context of that other sexual behaviour is crucial to he concept of similarity. For example, sexual behaviour where the context is duress or involuntary intoxication must be relevant to similarity. And indeed similarity beyond coincidence necessarily imports such rationale. Yet in the Ched Evans case, when giving reasons in concluding that the similarity test was met the court of appeal cite only ‘intoxication’ as being the context, then focusing on the words and acts. I’m not sure that’s adequate. The extent of the similarity required by the law to potentially allow admission is the ‘touchstone’ of coincidence. But once you disregard context in favour of particularity you lose the oversight to properly assess the potential for coincidence.

The reason I am particularly concerned about this reasoning is demonstrated by your analysis. Your scenarios of guilt ignore the context of consent. This was never a question of just too drunk to consent. Consent necessitates a real choice, freely given. Intoxication is part of of that, of course, but only part of it. Then the other circumstances, or the context, come into play. For example, the Ched Evans let himself into the room without permission. He himself didn’t ask permission to join in, or barely asked. At the point Ched Evans got involved his group were filming at the window, and he arguably knew that. The reality of X’s consent necessitated an analysis of her vulnerability, lying prone and undressed with a virtual stranger as she was.

For what it’s worth, I am unsurprised the Ched Evans defence team declined to meaningfully run reasonable belief in consent, even if the CCRC and CoA was prepared to theorise as to the potential relevance of that defence. Ched Evans didn’t bother to much ask whether he was welcome having burst into the room uninvited, and didn’t hang around to find out either. To put that as leading to a reasonably held belief in front of jury would no doubt have been as bad as it sounds. His defence was no better than that she sounded like she enjoyed it so she might have consented. That, of course, is and was good enough for a criminal trial, if not the twitter sphere.

He should, in my opinion, consider himself fortunate to have had the benefit of a second jury who heard evidence of X’s unchasteness.

No need to apologise for lack of clarify Matthew, I think your arguments are very clear; let me try and summarise them fairly and accurately:

1 – You think the court of appeal decision to allow the sexual-history evidence of Owens and Hughes to be heard at a re-trial was wrong.

2 – The similarity of the evidence of the two new witnesses was weak, failed to acknowledge the real circumstances, and ignored key differences in the wider contexts.

3 – The court of appeal cited only intoxication as being the context.

4 – The admission of the sexual-history evidence had the inadvertent effect of playing to the rape-myth that an unchaste women is more likely to consent (which ironically, was one of the reasons s41 was introduced), thereby potentially appealing to prejudice of the jury.

5 – The sexual-history detail should not have been admitted given the risk it would be treated as evidence that the incident with Ched Evans was consensual i.e. even if some of what Ched says happened was similar beyond coincidence, this doesn’t mean the sex with Ched was consensual, he would not necessarily stand to be acquitted.

6 – This case was never a question of X being just too drunk to consent.

7 – The reality of X’s consent necessitated an analysis of her vulnerability.

8 – Ched didn’t ask permission to join in, or barely asked.

9 – Ched’s defence was no better than that X sounded like she enjoyed it.

10 – Ched should consider himself fortunate to have had the benefit of a second jury who heard evidence of X’s ‘unchasteness’.

Here’s a summary of my comments and concerns with your arguments:

With regard to point 1, I think you’re wrong that the court of appeal was wrong. It’s important to note that the court of appeal didn’t decide Ched was not-guilty, they simply concluded this evidence should be heard at a re-trial.

With regard to point 2, comparison was similar enough, it didn’t need to be mainly comparable. The prosecution-team was free to raise issues/details/concerns about the real circumstances and wider context for the jury to consider.

On point 3, there were many similar aspects in the wider contexts beyond just intoxication: X called Owens to initiate a ‘hook up’ after leaving the nightclub, as she did with Clayton when she insisted she go with him to the hotel; likewise X called Hughes after a night out drinking, asked him to meet for sex; X initiated sex by climbing on top of Owens, comparable to her initiated sex with Ched by asking he perform oral-sex on her; X was in control with Owens, Hughes, and Ched; X was confident in the bedroom with all three men; in all three cases she moved onto all fours and demanded the men ‘go harder’; incidents with all three men were casual-sex arrangements; all three involved unprotected sex; X lacked memory in the morning on three occasions with Owens, as was the case after the incident with Ched and Clayton.

On point 4, we have no idea what impact the evidence of Owens and Hughes had on the jury, not sure what value there is in speculating. What’s more, the evidence of Owens and Hughes was only part of what I described as a ‘raft of evidence’ that indicates X was in control and making rational decisions (my list of 11 points in a previous comment). It would seem fair to assume that the jury in the first trial were not unduly influenced by the unchaste behaviour of X with regards to McDonald, given they found Ched guilty.

On point 5, I think you’re missing a number of steps in the reasoning here: the similarities gave credibility to Ched having told the truth about the sex that took place between he and X; the particular act, X taking the lead in choosing to move onto all fours and demanding Ched ‘go harder’, cast significant doubt on the claim that X was in an unfit state to consent; it was reasonable to conclude from this that X was consenting, or at the very least for Ched to believe she was consenting.

On point 6, the case came down to one issue only: did X consent to sex with Ched or not? The prosecution claimed she could not have consented due to intoxication. Ched says she did consent, and explained in some detail how he was sure based on her behaviour and engagement in the sex. The judge told the jury: “It is for the prosecution to make you sure that the complainant did not consent.” And in the summing up by the defence: “If you think he is probably not guilty, the right verdict is not guilty. Even if you think he is probably guilty, the right verdict is still not guilty. It is only if you are sure of guilt you can convict”.

On point 7, I think talking about X’s ‘vulnerability’ risks introducing the prejudice of another rape-myth: that women are typically passive and lacking agency in sexual encounters, and tend to be exploited. You risk precluding the possibility that X may have been thrilled when she saw Ched in the room, maybe she was excited being watched from those outside the window, maybe she didn’t give a damn she didn’t know Ched’s name.

On point 8, both Ched and Clayton claimed they did ask X permission for Ched to join in, and that she said Yes; which is a very direct way to determine consent. X then directing proceedings, if true, further confirms her consent i.e. it is unreasonable to conclude that a woman moving to all fours and demanding Ched ‘go harder’ could leave the issue of consent in doubt.

On point 9, Ched’s defence was much more substantive than just ‘X sounded like she enjoyed it’: he claimed she responded Yes when asked if he could join in; she asked him to perform oral-sex; she chose to change positions; she asked him to ‘go harder’; Clayton confirmed all of this to be true; Ched’s brother watching from the window claims he saw X actively engaging in sex; a receptionist, concerned about the woman in a room with two men, heard X actively engaging in sex, and had no concerns to intervene.

On point 10, yes we’re agreed Ched was very fortunate to be granted a re-trial. We can not know what impact/relevance X’s ‘unchasteness’ had on the new jury, nor whether it was the raft of other evidence lead them to their conclusions and would have done so even without the new evidence (but of course, Ched couldn’t lodge an appeal, never mind secure a re-trial, without new evidence).

Matthew, there is one aspect of your position that is not clear: whether you think any evidence from Owens and Hughes could ever have been relevant and admissible. So I’d be interested in your comments on a hypothetical scenario.
Let’s suppose that, in addition to all the detail we know about this case (and no change in the differences in contexts), Ched also claimed that when he was performing oral sex on X, she asked him to use his hand to do act-A on her, and his other hand to perform act-B (where these two acts are very intimate and specific).
Both Owens and Hughes claim that X asked exactly the same of them, and in fact they have video evidence to back this up (with audio of her asking for acts A and B), X having voluntarily used her phone to film this aspect of the sex she enjoyed, liking to review it later, and having sent copies of the video-clips to her lovers.
The court has established and confirmed the dates of the videos, one taken 48 hours prior to the incident with Ched the other two weeks later. We are safely assured that Ched could not have known about the videos prior to providing similar detail in his statement to the police the day after his incident with X.
Would this evidence change your view that the appeal-court was wrong to allow the sexual-history evidence of Owens and Hughes to be presented at a re-trial? If you were a member of the jury, would this detail sway your belief in the truthfulness of Ched’s account of what happened? And would it matter with regards to determining whether X consented or not?
Chris.

A useful contribution to the wider discussion, so thanks for making the effort to engage and challenge my opinion.

My critique of the second appeal in the Ched Evans case has been confined to the limited issue of the way in which s.41(3)(c) operated on these facts – the ‘so similar’ point. Our understanding of that issue is greatly informed by the various speeches in Re A(no.2) 2002.

My key concern in Evans was the apparent lack of context to the prior sexual behaviour. The reason for my concern will be more readily understood by an analysis of the development of s.41. The majority of the academic, legal and eventually parliamentary concern through the 1970’s and 80’s on the topic of prior sexual behaviour related to third party evidence. That the current iteration of s41 does not distinguish between an accused and a third party is to many surprising. In re A, it is a powerful feature. Parliament, it would appear, favoured such a restrictive approach that the court found the law to be right on the edge of compatibility. It is to be born in mind that in finding a way to have the act survive compatibility the law lords were faced with a section that treated an accused and third party alike.

Throughout though, it is plain that third party behaviour will almost always be inadmissible. Close to never admissible. Third party sexual behaviour and consent with the accused are just not related, but are profoundly linked to rape myths and degrading cross examination.

Of course, it is the language of s41 with which the court in Evans was rightly concerned. But when we discuss what so similar means, it is right to understand this background. It will be an exceptional case where such evidence is admitted, and the grounds for such admission must be on the clearest footing. An example cited in re A is where an accused claims that he is being blackmailed by the complainant over a charge of rape and he can call evidence that the complainant has blackmailed another man in like terms.

Also, re A is a 2002 case about 1999 legislation. Not old in legal terms, but as practitioners we know that since 2002 the CJS has been undertaking significant change in the way sex cases are investigated and prosecuted. This links with significant development in myth busting sexual offending. At the very least, since re A it must be plain that there has been a further shift towards the protection of victims and witnesses, of better case management in identifying the key issues in a case and scrutinising with the utmost care any s.41 application.

Thus it was a significant surprise for me to see the court of appeal permit evidence of third party sexual behaviour in a case where the account of the accused was not starkly disputed by the Crown. It had always been understood that in cases where, whilst consent might be true legal issue, the job of a jury in reality was to decide between two starkly different accounts of a sexual encounter, other or third party evidence was more likely to be admitted in a fair trial.

That initial surprise lead me to consider whether this was such a rare case or whether the court of appeal had fallen into error, and if so why. And, as you have kindly read, my conclusion was that this was by no means such a rare case, and that the error was the focus on the words and actions, notwithstanding the context.

You ask what context, what behaviour would have satisfied the test, in my mind? Evidence of behaviour with Ched Evans would have been a starting point. Evidence, if it existed, that X consented to sexual intercourse with a total stranger who had walked in uninvited whilst X was with another man. Perhaps if X had given a factual account claiming Evans and McDonald had held her down whilst taking turns to violently assault her, thus creating that key central factual dispute, I might have taken a different view.

We know from experience that small facts, apparently small shifts in evidence can make a big difference. So who knows what hypotheticals might have. Even persuasive. But as it was, it seems to me that the court of appeal let drop a shield to which X was entirely entitled, and risked (though we will never know what swayed the jury on retrial) conflating her prior consent with present consent.

Moreover, it appears to have been a case in which there was ample other evidence on which a fair trial for both sides could have been run. You have described it as a raft, though it was a raft which sank Evans first time round.

In any event, to me it is a case, however rare, that highlights the tremendously difficult balance the courts must tread in admitting evidence of prior sexual behaviour. A fair trial is sacred, but what that means in our current system remains a matter of substantial debate.

Matthew, your further comments are interesting and helpful additions to the arguments you made in your original article. However, you’re now focusing on concerns about evidence related to third-parties – you didn’t mention anything specifically about third-parties in the initial article. I had understood your initial concerns to be:
1 – The evidence of Owens and Hughes was not similar enough, particularly with regard to context. You wrote “To describe X’s ‘sexual behaviour’ as similar or even sensibly comparable in these instances was unreal.”
2 – Even if the sex Ched described with X actually happened, the evidence “absolutely should not have been admitted given the risk that it would be treated as evidence that the incident with Ched Evans was consensual.”
3 – And anyway, irrespective of what Owens and Hughes had to say “The real issue for a fair trial was whether X had the capacity to consent to sex with Ched Evans”. Although I wondered if you then contradicted this when you wrote in a subsequent comment “This was never a question of just too drunk to consent.”
Some may start to wonder if the goal-posts are moving.

You say: “It is plain that third party behaviour will almost always be inadmissible. Close to never admissible” because “Third party sexual behaviour and consent with the accused are just not related”. I fundamentally disagree with this, based on the reasoning that the very particular actions/words and wider similarities (those I outlined ‘on point 3’ in my previous post) across the Owens, Hughes, and Evans scenarios are clear indications of X taking the lead and fully engaging in sex, which cannot be construed as anything other than consensual. If X chose to change positions, move onto all fours, and insist Ched ‘go harder’ that must be consensual sex, how can it possibly be otherwise? Or, as I’ve said before, at the very least it would give good reason for Ched to believe X was consenting.

With regard to third-party evidence being “close to never admissible”, do you think that’s the case for potential evidence that would fall under s.41(5) too? Because in the CoA judgement document, para 14 states that in the initial trial “The defence had intended to make an application under s.41 to call evidence from two men to rebut X’s assertion in her third interview that she would not have sex with a stranger. This was abandoned when the Crown decided not to use her evidence to that effect.”
Matthew, it’s not clear whether your concerns are with s.41 exceptions allowing third-party evidence in general, or just with this particular CoA decision i.e. is the problem with the definition of the law, or with the application in this case? Or both?

In the Ched Evans case, the CoA judgement document indicates that extensive consideration was given to the issue of third-party concerns; it was mentioned in paras 46, 47, and 48. Para 72 includes “We are acutely conscious of the hurdle facing any defendant in persuading a trial judge that evidence of this kind from third parties is admissible.” And para 74 states that it “was right to emphasise the importance of offering complainants in sexual offences protection from intrusive and unnecessary questioning about sexual history, particularly with third parties.”

I think you’re placing too much emphasis on the rape-myth ‘unchaste women are more likely to consent’. Concerns about rape-myths is a whole other discussion for another time, but it’s worth mentioning that respected informed academics and other have questioned the validity of rape-myth arguments, suggesting we’re in danger of creating myths about myths (you may be familiar with Helen Reece’s paper on this from 2013 – coincidentally, and very sadly, Helen died last week, which was truly awful news).
However, relative to this, para 49 says “To an extent, any challenging of a complainant’s evidence involves an attack upon her credibility. To obtain leave under this section the defence must satisfy the judge that the provisions of one or more of the other subsections apply and that, if leave is refused, any subsequent conviction would be unsafe.”
With regard to concerns about X’s credibility and her unchasteness, I wonder if the acquittal of Clayton McDonald in the first trial was relevant for the re-trial jury i.e. knowing that X had initiated going back to the hotel with Clayton, a complete stranger (I don’t recall hearing if Clayton and X even exchanged names?) and had consensual sex with him. I presume we’d consider this third-party evidence? Did that (should that?) have any bearing on the jury’s verdict?

We’re definitely agreed that, as you say “This is a case, however rare, that highlights the tremendously difficult balance the courts must tread in admitting evidence of prior sexual behaviour”. But you’ve still not convinced me that the CoA decision to allow evidence from Owens and Hughes was wrong.
The evidence was similar enough, beyond coincidental (particularly considering matching evidence from two separate witnesses, one 48 hours before one two weeks after), and gave credibility beyond reasonable doubt that Ched had truthfully described what happened in the hotel room between he and X – which in turn proved, beyond reasonable doubt, that X was not in an unfit state such that she could not possibly have been able to consent to sex. I see the evidence of Owens and Hughes as item No. 12 on the large raft of evidence, all of which amounts to overwhelming doubt that X had no capacity to consent.
Ched did not need to prove X consented. And as the defence said in their summing-up “lack of memory does not equal lack of consent.”

Matthew, you didn’t address the three questions I asked at the end of my last post based on the hypothetical scenario I outlined. I think it would be very helpful if you did, please? Because I think it would allow us to test another realistic case against your concerns about third-party evidence,
Chris.

You might well be right about about much of this or you might be in danger of espousing a dated view that risks derailing a process that creates a fairer, safer place for men and women alike. I don’t know. My interest in this latest post was to examine whether there arguably existed a flaw in the decision of the court of appeal to admit the fresh evidence, and I think there was.

Whether the law is right or wrong is another matter of course. The clear intent of parliament in s.41 was to substantially limit the type of evidence that was admitted in Evans. The key authority, and it is as heavyweight as you might care to find, is re A (no2). In there, we find important observation and comment on the operation of s.41 generally, including on the ‘so similar’ point. In re A you will find dicta that clearly supports the rationale deployed in Evans, in particular that only some aspect of the other sexual behaviour needs to be so similar, not all of it. But the overall theme is contrary to the admission of such evidence, and reminds us of importance of context. It is against that analysis that I find the Evans ratio to be flawed, and so flawed as to be wrong. That may be a rather legalistic position, but then I am a lawyer.

Stepping back a little, I am by no means a fan of s.41. Having practised for plenty long enough to have seen cases where it seems s.41 sets an impossibly high hurdle against a fair trial, I worry. I have seen more examples of innocent men and women being accused and put through the mill of the CJS than I have of witnesses being grilled about their sexual exploits. We operate in a system where frankly innocent men (mostly) are prosecuted in the face of the real evidence having been investigated by a biased police force.

I now practise in a university town where the drunken exploits of students clash with criminal law more often than I am comfortable with, for example. How long will it be before we see a case of two haplessly and recklessly drunken students prosecuted for sleeping with each other? Chuck some s.41 analysis at that. And I am sure you can describe similar concerns, whether around hypotheticals of evidence in Evans or otherwise.

I do know that we would be significantly better off putting more and better resource into supporting victims of sexual violence. Prosecution is often a vapid panacea that inevitably fails everyone. Genuine victims are let down, innocent men and women are prosecuted, and yet the guilty still too often walk free. I represent all of these people, and I see and hear their stories.

But to wonder if the law is wrong is different from arguing that the law was wrongly applied or interpreted. I may be unable to persuade you as to the fallacy in the Court of Appeal’s judgement in Evans. Hey, the court of appeal no doubt gets the law a smidge better than me. I dont pretend otherwise. But I do think I am right to question the quality of the rationale on the s.41(3)(c) point given the features of the evidence I have described and I do think the judgement is flawed in failing to have addressed the issues I have identified. I respectfully remain of the view that it was not enough for the court to blandly reference the rarity of admitting such evidence or the height of the hurdle an applicant must face, and then admit it anyway.

I am grateful for the opportunity to exchange views and thoughts on this important topic, and to be challenged. As lawyers, we are used to being given a fight. I chose to pick one. Social media can be unforgiving, but also illuminating.

Matthew,
I appreciate your further heart-felt and balanced thoughts about this case and the wider associated issues, particularly your acknowledgement of the difficulties innocent men and women face when being prosecuted.

I feel a little stung by the suggestion my position raises the “danger of espousing a dated view that risks derailing a process that creates a fairer, safer place for men and women”. Likewise, maybe it could be said that your position, particularly your emphasis on rape-myth, possibly risks being compared to, and lumped together with, the knee-jerk reactions of the doom-and-gloom scaremongers – the likes of Vera Baird claiming this has set us back 30 years, or Julie Bindel who says she still believes the ‘victim’, Ched is still a rapist in her eyes, and that now if she were raped she would not report it to the police. Bindel proposed a few months ago that we seriously consider hearing rape-cases in juryless courts. Thankfully you haven’t said anything that would imply you support that proposal. But maybe you do.

My interest in this case was initiated soon after Ched Evans was released from prison in Oct 2014, when a friend encouraged me to look in more detail at the particulars of the case. Until then, I’d taken for granted this arrogant entitled over-paid footballer was surely guilty. Within a few hours of reading about the case, and the views of others from both sides of the debate, I was convinced that this was an unsafe verdict. Although based only on what was available in the public domain, I was sure that had I been on the jury, I could not have concluded other than not-guilty.
My on-going interest stems from being the father of a 22 year old daughter who believes we live in a rape-culture (I don’t agree) and an 18 year old son who thinks his sister often displays the views of a ‘feminazi’ (I don’t agree with that either).
The fact that the three of us have avoided any discussion since the re-trial indicates how toxic the topic is, and how difficult calm rational conversation can be.

So I’m very grateful that you’ve engaged in civil exchange and debate here.
However, I do think you’ve avoided answering virtually all the direct questions I asked.
And you have not really attempted to rebut my arguments, especially around the issue of similarity and comparison of context.
It’s a shame that no one else has contributed to this conversation. I would have been interested to hear the opinions of other lawyers, both those that agree and those that disagree with your position.
As you may have guessed, I’m not a lawyer. But I am university educated with a first-class honours degree. I consider myself liberal, fair minded, and open to having my opinions changed. I do not engage in social-media: no FaceBook account, nor any Twitter account. Not even a smart phone.

It seems our conversation is now coming to an end. So I’ve re-read your original article, my comments, and your responses to help determine if there are any final points I’d like to make.
One sentence you wrote stood out: “Previous physically similar sexual behaviour that was consensual in wholly different circumstances absolutely should not have been admitted given the risk that it would be treated as evidence that the incident with Ched Evans was consensual.”
A cynical interpretation may suggest that the ‘risk’ you refer to here, is that Ched Evans would be granted a fair trial i.e. the evidence should not have been admitted simply because it risked leading to a fair acquittal.

I think there’s a fundamental chicken and egg aspect to your position Matthew, in that: although there are differences in the contexts (e.g. with Owens and Hughes she was with one man only, whom she had chosen, not someone who ‘burst’ into the room), this is negated by the fact that, (if true) X having replied ‘Yes’ to being asked if Ched could have sex with her, the similarities from that point on across the Owens, Hughes, and Evans situations are very similar indeed: casual drunken unprotected sex, X confidently taking the lead, X directing positions, X lacking memory the morning after – all in addition to those specific words and that specific act.
It’s chicken and egg because your central claim is that the sex X had with Owens and Hughes was consensual, and therefore dissimilar to the non-consensual sex X had with Ched – when of course, the issue of consent with Ched is what we’re trying to establish.
And again, even with this new evidence, the prosecution had every opportunity to air the issues and concerns you’ve raised – acquittal was not a done deal. The CoA simply allowed what they felt was a significant and relevant piece of evidence to be admitted in a re-trial.

I won’t ask directly if you agree with me that Ched Evans finally received justice.
Nor whether you think, as I do, that there is a very strong argument to suggest this case should never have gone to court in the first place.
But maybe I can assume that we do share the view that nobody came out of this case well, that both X and Ched Evans deserve our sympathies for what they’ve been through, and what they both now have to live with.